The word “organic” as it relates to non-agricultural products is the topic of the October 20, 2016, roundtable sponsored by the Federal Trade Commission and the U.S. Department of Agriculture.

This is a big deal. The roundtable will explore interpretations of organic claims for products that fall outside the scope of the USDA’s National Organic Program (which potentially includes everything from cannabis to shampoo and building materials to dry cleaning, all of which are outside of USDA’s voluntary Program).

If a business makes environmental claims in its ads or on its products or in its building, the Federal government offers guidance through the FTC’s Green Guides. The Guides have the force of law and articulate how the FTC perceives truth-in-advertising principles as they apply to green marketing and highlights terms often used in environmental ads.

However, the current Green Guides do not include guidance on the term “organic.”

The FTC has said it wanted to avoid proposing advice duplicative of, or inconsistent with, the USDA’s National Organic Program. But, the USDA’s Program does not apply to non-agricultural products.

Interestingly, in response to comments on the regulatory gap, the FTC responded that it “lacked consumer perception evidence relating to claims for these [non-agricultural] products.”

Of course, the Green Guides’ general principles apply to all environmental claims. However, there is a legitimate concern in the marketplace that the FTC perceives all of this too narrowly when it takes the position that a business “must have substantiation for any environmental benefit claims they make, including implied claims,” apparently going far beyond accurately stating that a product is organic.

Earlier this year, the FTC staff conducted a study of more than 8,000 consumers to examine how consumers perceive organic claims. The study focused solely on organic claims for shampoos, mattresses, and dry cleaning services that fall outside of the USDA Program. But the study only investigated whether an organic claim accurately describes a product containing a small percentage of non-organic material. That is, the FTC asked consumers about a product that contained a small, but varying, percentage (i.e., less than 1%; 1% to 5%; and 5% to 10%) of materials “made by a man-made, chemical process.” For all three percentage categories, a significant minority of consumers disagreed that the organic claims accurately describe the product. But none of this really has anything to do with the larger issues of being able to claim a product is organic, when it is and, at best, considered the small space of deceptive organic claims. Despite that, the study concluded that “the organic claims results merit further consideration” thus, the FTC and USDA are holding the public roundtable on October 20.

There are “organic” building materials and products and with increased concern over human health and well being within buildings including improving indoor air quality, reducing volatile organic compounds may be among the fastest growing issues in green building; not to mention the increased emphasis in LEED on materials disclosures in EPDs and HPDs.

And most recently, with the explosive growth of the legal cannabis industry, where the USDA governs what is an “organic” agricultural, federal policy does not permit cannabis, a federally banned substance, to be labeled as organic. In point of fact this law firm has been working with a cannabis industry group to create a ‘pesticide free, fertilizer free and fungicide free’ Green Check third party certification for “organic equivalent” cannabis.

There is no rational basis in the FTC attempting to restrain the use of the term organic when it actually identifies an organic product or material. If it is true, a business should be able to say so.

While there is little hope the FTC will offer positive guidance on organic building materials or cannabis allowing an organic product to claim it is organic, because it is, if you can’t make it to DC on October 20th, watch several panels via webcast. The FTC will post a link on their event page just before the roundtable begins.